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Tripura High Court · body

2014 DIGILAW 280 (TRI)

Billal Ahmed v. State of Tripura

2014-07-18

S.C.DAS

body2014
JUDGMENT S.C. Das, J.:-- 1. This criminal appeal under Section 374 of CrPC is directed against judgment and order of conviction and sentence dated 17.05.2012 passed by learned Addl. Sessions Judge, Dharmanagar, North Tripura in case No. S.T. 10(NT/D)/2011, whereunder learned Addl. Sessions Judge found the accused appellant guilty of committing offence punishable under Section 304B of IPC and sentenced him to suffer RI for five years and to pay a fine of Rs. 3,000/-(rupees three thousand), in default of payment of fine to suffer RI for three months and also found him guilty of committing offence punishable under Section 498A of IPC and sentenced him to suffer RI for three years and to pay a fine of Rs. 1,000/-(rupees one thousand), in default of payment of fine to suffer RI for three months and directed that both the substantive sentences shall run concurrently. Felt aggrieved, the accused appellant Billal Ahmed alias Billal Uddin filed the present appeal challenging the judgment and order of conviction and sentence. 2. Heard learned counsel, Mr. H.K. Bhowmik for the appellant and learned Addl. P.P., Mr. R.C. Debnath for the State respondent. 3. It is an undisputed fact that Rina Begum, wife of accused appellant Billal Ahmed alias Billal Uddin, died an unnatural death consuming poison on the intervening night of 09.04.2009 and 10.04.2009(night between Thursday and Friday) at any time in the matrimonial home, i.e. in the house of the accused appellant at South Fulbari under PS Churaibari. It is also an admitted fact that marriage between Billal Ahmed and Rina Begum was solemnized on 03.01.2009 and there was no demand of dowry at the time of solemnization of marriage. After the death of Rina Begum her father PW1, Abdul Kadir lodged an FIR in writing at Churaibari PS alleging that Rina Begum was subjected to cruelty in the matrimonial home on demand of different furniture and when that demand was fulfilled she was again subjected to cruelty and harassment on demand of a cash amount of Rs. 20,000/-(rupees twenty thousand) and since that demand was not fulfilled she was subjected to cruelty, and as a result she was killed in her husband’s house by poisoning. FIR was lodged on 10.04.2009 at about 1705 hrs. 20,000/-(rupees twenty thousand) and since that demand was not fulfilled she was subjected to cruelty, and as a result she was killed in her husband’s house by poisoning. FIR was lodged on 10.04.2009 at about 1705 hrs. and on the basis thereof Churaibari PS Case No. 07 of 2009 under Section 304B of IPC was registered and police after investigation submitted charge sheet against the accused appellant and other members of his family for commission of offence punishable under Sections 498A and 304B of IPC. 3.1. Based on police report, cognizance was taken and on commitment of the case to the Court of Addl. Sessions Judge, learned Addl. Sessions Judge framed charges against the accused appellant and three other members of his family under Section 304B read with Section 34 of IPC, and in the alternative under Section 302 of IPC and also under Section 498A read with Section 34 of IPC to which the accused pleaded not guilty and claimed to be tried. 4. To prove the charges, prosecution examined twenty witnesses. The accused appellant and other accused persons thereafter were examined under Section 313 of CrPC and in their turn the accused persons adduced no defence evidence. Plea of the accused taken in course of cross-examination of the prosecution witnesses and at the time of examination under Section 313 of CrPC is that deceased-Rina was suffering from severe menstrual disease and she was always in depression and because of her depression she might have consumed poison and thereby committed suicide. 5. Learned Addl. Sessions Judge considering the evidence of the witnesses found the accused guilty of the offence alleged and sentenced him as stated hereinbefore. 6. It is argued by learned counsel, Mr. Bhowmik that there was no demand of dowry at the time of marriage and the deceased died within three months of her marriage consuming poison. Relation between the parental house of the deceased and the accused persons was cordial. It is in the evidence of the prosecution witnesses that Rina was suffering from severe menstrual disease because of her continuous bleeding and she was treated in Kadamtala hospital and also at Mukunda hospital but could not cure and as a result she was suffering from mental depression for which she committed suicide. It is in the evidence of the prosecution witnesses that Rina was suffering from severe menstrual disease because of her continuous bleeding and she was treated in Kadamtala hospital and also at Mukunda hospital but could not cure and as a result she was suffering from mental depression for which she committed suicide. After her death her parents and uncles made a false allegation of demand of furniture and cash money and that is evident from their statement itself. It is also submitted by Mr. Bhowmik that even if it is accepted that there was unlawful demand, but there is no evidence of the conduct of the accused appellant as to how he had exercised cruelty on the deceased. A mere statement of harassment or torture is not sufficient and more what is required to be proved is the manner and nature of the cruelty exercised on the deceased and since there is no cogent evidence to that effect, prosecution case is liable to be disbelieved. 7. Learned Addl. P.P., on the other hand, has submitted that the parents and uncles of the deceased, i.e. PWs 1, 2, 3, 4 and 13 stated about demand of money and exercise of cruelty by way of harassment on Rina in the matrimonial home has been proved. So, the punishment given by the trial Court is justified. 8. I have meticulously gone through the evidence on record. PWs 1, 2, 3, 4 and 13 are the only witnesses who narrated about the allegation of demand of furniture and cash money and other witnesses stated nothing regarding such demand. Out of those five witnesses PWs 1 and 4 are the parents of the deceased and PWs 2, 3 and 13 are the uncles of the deceased. 9. Admittedly Rina, a young woman, daughter of PWs 1 and 4 and niece of PWs 2, 3 and 13, died within three months of her marriage. Naturally, the parents and near relatives come out to say against the supposed guilty persons, i.e. the husband and other members of the family since Rina died an unnatural death. 9.1. The Supreme Court in the case of Sharad Birdhichand Sarda Vrs. State of Maharashtra, reported in : (1984) 4 SCC 116 has observed that in cases of such nature, the testimony of the relative witnesses should be scanned with great care and caution. 9.1. The Supreme Court in the case of Sharad Birdhichand Sarda Vrs. State of Maharashtra, reported in : (1984) 4 SCC 116 has observed that in cases of such nature, the testimony of the relative witnesses should be scanned with great care and caution. In para 48 of the judgment the apex court has observed-- 48. Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the tenth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it. 10. Let us now have a glimpse to the material evidence on record. 10.1. Admittedly, Rina died on the intervening night of 09.04.2009 and 10.04.2009 at any time in her matrimonial home consuming some poisonous substance. The FIR in writing was lodged by her father PW1 on 10.04.2009 at 1705 hrs. and the FIR is proved as Exbt. 1. Since the FIR was lodged immediately after the death of Rina we must look into the bundle of allegation made in the FIR. The FIR in writing was lodged by her father PW1 on 10.04.2009 at 1705 hrs. and the FIR is proved as Exbt. 1. Since the FIR was lodged immediately after the death of Rina we must look into the bundle of allegation made in the FIR. After meticulous examination of the FIR I find that the informant in the FIR made the following allegations-- (i) since after marriage the accused persons has been continuously inflicting physical and mental torture and tormentation to Rina Begum for realizing dowry; (ii) some days after marriage the informant-father, i.e. PW1 ceremoniously given furniture and other articles to the groom(accused) worth about Rs. 25,000/-; (iii) still the accused persons further demanded Rs. 20,000/- in cash; (iv) to realize that amount, accused persons all along started torture on Rina Begum; (v) Rina Begum went to her parent’s house and demanded the amount; (vi) the informant expressed his inability to pay the amount and Rina returned to her husband’s house in empty hand and so torture was increased for not having the demanded amount; (vii) under such circumstances, five days ago(before death) Rina again visited her parents house and asked the informant-father to give at least Rs. 10,000/-; (viii) informant-father expressed his inability and Rina returned to her matrimonial home in empty hand and so she was subjected to torture and tormentation; (ix) on 09.04.2009, a relative of the accused persons at 3.00 am of the night informed the informant about the death of Rina Begum; (x) the informant suspected that Rina Begum was killed for not fulfilling the demand; 10.2. In his deposition PW1, the informant-father of the deceased stated that after marriage his daughter came to his house and told him that she was assaulted by her husband for wooden furniture(Khat, Palong, etc.) and her brother-in-law, father-in-law and mother-in-law also assaulted her for the said articles and to settle the demand, he(witness) gave the furniture spending Rs. 25,000/-. But in spite of that there was no peace in her life because her husband used to criticize the qualities of house articles and he started demanding Rs. 20,000/-. He(witness) was unable to give the said money and after five days of said demand of Rs. 20,000/- by her husband, one person, namely Manik Miah informed the witness that his daughter died at her matrimonial home. 20,000/-. He(witness) was unable to give the said money and after five days of said demand of Rs. 20,000/- by her husband, one person, namely Manik Miah informed the witness that his daughter died at her matrimonial home. A bare reading of the allegation made in the FIR, and the allegation made in the statement of PW1 in his deposition before Court we find a gulf of difference. According to the FIR and the deposition of the witness, initially, Rina was assaulted for furniture, etc. but those were satisfied spending Rs. 25,000/-. As per the FIR, subsequently Rs. 20,000/- was demanded and after that demand of Rs. 20,000/- Rina visited her parents house at least twice. For the first time she requested her father to give Rs. 20,000/- but her father expressed his inability and thereafter again she visited her father’s house and requested her father to give at least Rs. 10,000/- but her father could not give and thereafter she returned to her husband’s house and after five days Rina died in her husband’s house, whereas, in the evidence of PW1 it is simply stated that after five days of the demand of Rs. 20,000/- they got the information of death of Rina in her husband’s house. 10.3. PW4, the mother of the victim stated that her husband used to ill treat her demanding Rs. 20,000/- but father of Rina was unable to make the payment and after about 4/5 days they got information that Rina died in the hospital. 10.4. PWs 2 and 3 made hearsay statement about demand of Rs. 20,000/- and furniture, etc. Since they have nowhere stated that the demand was made either in their presence or that they were either informed by the deceased or by the parents of the deceased, their evidence, therefore, deserve no merit for consideration. 10.5. PW13, the other uncle also made almost similar statement. He further made some exaggerated statement which was not even stated by PWs 1 and 4. He stated that after marriage Rina told him that her husband was torturing on her on demand of dowry articles, namely cot(palong), etc. Subsequently, her husband also demanded money and her father was unable to pay the amount. Before five days of her death her husband came to her father and demanded Rs. 25,000/-. But her father was unable to make the payment and after five days Rina died. Subsequently, her husband also demanded money and her father was unable to pay the amount. Before five days of her death her husband came to her father and demanded Rs. 25,000/-. But her father was unable to make the payment and after five days Rina died. The statement of this witness is in conflict with the statement of PWs 1 and 4. All the witnesses made omnibus statements about demand and torture and harassment in the matrimonial home. 11. Section 498A of IPC has been inserted and brought into effect with a view to curb the vices of cruelty to a married woman by her husband and other relatives of the husband. The concept of cruelty and its effect varies from individual to individual, depending upon the social and economic status to which such person belongs. The basic facts from which cruelty is to be inferred are to be alleged and proved. For the purpose of an offence punishable under Section 498(A) of IPC, cruelty has been defined in the Explanation to the section which reads: (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health(whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is account of failure by her or any person related to her to meet such demand. 12. The Supreme Court in the Case of Girdhar Shankar Tawade V. State of Maharashtra reported in : (2002) 5 SCC 177 has considered as to what constitutes cruelty, as defined in Section 498-A of IPC. In Para 3 of the judgment, the Court has observed:- 3. The basic purport of the statutory provision is to avoid “cruelty” which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. In Para 3 of the judgment, the Court has observed:- 3. The basic purport of the statutory provision is to avoid “cruelty” which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word “cruelty” as is expressed by the legislatures: Whereas Explanation (a) involves three specific situations viz., (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury: whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of “cruelty” in terms of Section 498(A). 13. In the present case, so far the allegation is concerned, prosecution is to prove that Rina was subjected to harassment with a view to coercing her or the persons related to her to meet the unlawful demand of money or other articles. PW1 in his cross-examination admitted that there was no demand at the time of marriage. It is the allegation that after marriage demand of furniture was made and spending about Rs. 25,000/- that demand was fulfilled. PW9 stated that PW1 purchased some furniture amounting to Rs. 7,000/- to give the same in the marriage of his daughter. The evidence of PWs 1 and 4 is supported by PW9 that some furniture were purchased to give at the time of marriage and it is also in the evidence on record that some articles were given at the time of marriage. There is no other evidence that after marriage pursuant to the demand furniture amounting to Rs. 25,000/- was given to the accused persons as a consideration of marriage. The most important question what is raised in this appeal is that all the material witnesses stated about the assault or harassment but nothing stated as to what was the nature of assault or harassment. 25,000/- was given to the accused persons as a consideration of marriage. The most important question what is raised in this appeal is that all the material witnesses stated about the assault or harassment but nothing stated as to what was the nature of assault or harassment. A mere omnibus statement that she was subjected to harassment is not sufficient unless the nature of harassment or assault is clearly stated in the deposition of witnesses. The Supreme Court in the case of Amar Singh v. State of Rajasthan reported in : (2010) 9 SCC 64 has held that a mere statement, “harassed” or “tortured” is not sufficient unless the exact conduct of the accused which amounted to harassment or torture is brought on record. We may gainfully refer here para 31, 32 and 33 of the judgment which reads as follows: 31. The evidence of PW 5 (brother of the deceased) is that whenever the deceased used to come home she used to complain that her in-laws have been teasing her and they were demanding a scooter or Rs. 25,000/- for a shop and that when the deceased came home one month prior to her death, she complained that her mother-in-law and all other in-laws used to torture her and taunt her that she did not bring anything, but PW 5 has not described the exact conduct of the mother-in-law and other in-laws on account of which the deceased felt tortured and taunted. On the other hand, the evidence of PW 4 is clear that Amar Singh used to taunt her that she has come from a hungry house. Thus, there was evidence in the case of Amar Singh about his exact conduct which caused harassment to the deceased but there was no such evidence in the case of Jagdish and Gordhani. 32. A prosecution witness who merely uses the word “harassed” or “tortured” and does not describe the exact conduct of the accused which, according to him, amounted to harassment or torture may not be believed by the court in cases under Section 498-A and 304-B IPC. For this reason, the High Court has taken a view that the charges against Jagdish and Gordhani have not been established beyond reasonable doubt and that their case is distinguishable from that of Amar Singh and that Jagdish and appear to have been implicated because they were members of Amar Singh’s family. For this reason, the High Court has taken a view that the charges against Jagdish and Gordhani have not been established beyond reasonable doubt and that their case is distinguishable from that of Amar Singh and that Jagdish and appear to have been implicated because they were members of Amar Singh’s family. 33. In Kans Raj v. State of Punjab and Others: (2000) 5 SCC 207 ], this Court cautioned that in cases where accusations of dowry deaths are made, the overt acts attributed to persons other than the husband are required to be proved beyond reasonable doubt and by mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. In the aforesaid case, this Court further observed that a tendency has developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. 13.1. In the present case, PWs 1, 2, 3, 4 and 13 who are the relatives of the deceased made omnibus statement of assault and harassment but nothing stated as to in what manner the assault and harassment were exercised. 14. PW8, a neighbour of the accused persons who was close to the deceased, in cross-examination stated that the deceased Rina was suffering from menstrual bleeding and that there was also bleeding without menstruation and that the disease was not cured even after treatment and Rina was suffering from depression. PW5 also stated that Rina was suffering from female disease. The parents of Rina denied the suggestion that she was suffering from illness and that she was not at all willing to the marriage because of her disease. There was definitely some reason as to why Rina consumed poison. It is the case of the accused persons that she consumed poison because of mental depression for her disease. 15. No doubt, life of a young lady ended in suspicious circumstances but unless cogent evidence is adduced about exercise of cruelty on unlawful demand, the accused cannot be roped for a criminal punishment. The presumption of Section 113B will be available only in the event the preliminary burden of proving the case is discharged by the prosecution. 15. No doubt, life of a young lady ended in suspicious circumstances but unless cogent evidence is adduced about exercise of cruelty on unlawful demand, the accused cannot be roped for a criminal punishment. The presumption of Section 113B will be available only in the event the preliminary burden of proving the case is discharged by the prosecution. Since the prosecution has failed to discharge its preliminary burden of proving the exercise of cruelty, I find no justification to uphold the order of conviction and sentence. The trial Court, in my considered opinion, has failed to correctly appreciate the evidence on record and consequently arrived at a wrong finding and hence the judgment and order of conviction and sentence cannot sustain and accordingly it is set aside and quashed. 16. The appeal is accordingly allowed. The appellant be released from custody at once. 17. Send back the L.C. record along with a copy of this judgment.